Worker

Employer

Anonymised Parties

Clinical nurse manager II

A Health Service Employer

Representatives

Joe Hoolan INMO

 Eimear Mulligan

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

IR - SC - 00002608

09/05/2024

The Worker is employed by the Employer for 34 years. She applied for the role of Assistant Director of Nursing in August 2020. The Worker interviewed and was placed on the panel for same.

Since November 2020 the Worker has been acting as Assistant Director of Nursing. This does not include any person in charge responsibilities.

In May 2023 she was offered a permanent position and provided with the job description. The job description included taking on the person in charge responsibilities. The Worker queried this as an earlier job description she had received had not included the person in charge responsibilities under the principal duties and responsibilities. The version she received did included the legal definition of a person in charge. The person in charge has statutory obligations. 

There was a meeting and correspondence between the Worker and the Employer in respect of same. This did not resolve the issue. The correspondence provided a job description which did not included being the person in charge responsibilities under the principal duties and responsibilities. It did included the legal definition of a person in charge.

On the 9th of November 2023 the Worker reverted to being paid at her earlier role’s rate of pay, not the rate for the Assistant Director of Nursing. She continues to act as the Assistant Director of Nursing.

On the 10th of January 2024 the Worker asked to return to her earlier role. She was informed on the 16th of February 2024 that she could not return to the role due to the moratorium.

The Worker’s representative set out that the Worker applied for Assistant Director of Nursing in 2020. The Worker’s Director of Nursing provided her with the job specification at that time. There was no reference to being the person in charge. 

In November 2020, she was interviewed and then the Worker was placed on a panel for the local area.

The Director of Nursing has always been the person in charge. The facility has 70 beds. The Director of Nursing at this site is solely on this site. Although it is proposed the Assistant Director of Nursing position will now be the person in charge, there is no pay increase for that. Even if there was the Worker did not want those responsibilities.

The Worker was offered a permanent position in May 2023. The contract stated the principal duties and responsibilities included “As Person in Charge will have legislative responsibility of a designated centre”.  This section has a different indentation to the rest of that section in one version of the job specification.

Currently when the Director of Nursing is off site, the Assistant Director of Nurse is not the person in charge. 

The Worker was placed first on the panel and if another role had come up which included the person in charge responsibilities, she would not have taken it. In relation to the person in charge responsibilities, the Worker would have expected it to be set out in the job specification, as it is very important. It requires the person to be responsible for HIQA standards.

When the Worker was interviewed for the role, she was not asked any questions about HIQA, the legal issues and standards. She would have anticipated those if the person in charge responsibilities were part of the role. The Representative highlighted an email from one of the interviewing members that confirmed this position “did not specify the role of PIC”.  The Director of Nursing was the person in charge at the time. When the Director of Nursing role was advertised it included those responsibilities. 

The Worker’s representative confirmed that there were no centres that have two persons in charge, as far as they are aware. The first mention of being the person in charge was in the contract. 

In October 2023, there was a meeting in relation to the issue. It appeared there were different job specifications. One referred to the Assistant Director of Nursing being the person in charge. It now appears that there are three versions of the job specification. None of the versions identify when they were updated.

In January 2024, the Worker sought to revert to her CN2 post. There is a moratorium, and she was told that she could not go back to same. Even though she does not have the person in charge responsibilities, she has remained acting as the Assistant Director of Nursing.

The Worker’s representative referred to the fact it appeared the legal definition of the person in charge appeared to be a copy and paste from the legislation. In two of the three versions there is no other mention of the person in charge, nor is there anything connecting those responsibilities to this role, bar the inclusion of the legal definition.

The Worker’s representative referred to an email dated 6 July 2023 from a member of the interview panel who confirmed the Person in Charge role at the time was undertaken by them, the Director of Nursing. “This did not specify the role of PIC”. This was the same person who gave the worker the job specification. 

If the appointment occurred in 2021, the Worker would not have been the person in charge.  Reconfiguration occurred in 2023.  

The Worker was not aware of any suggestion that there were people waiting, following this case. That was incorrect. 

The Worker’s representative highlighted that it had been accepted by the Employer that the job specification was modified. This did not occur at the time of the interviews. It was also accepted by the employer that the job specification received by the worker could have come from the Director of Nursing.

The Worker’s representative highlighted that the decision to add the person in charge role to the Assistant Director of Nursing did not occur in 2020.  The position at the time of the interviews should apply.

The Employer’s representative set out that the Director of Nursing at this facility includes a strategic role. The intention is to remove the person in charge responsibility from the Director. The current Director commenced their role in December 2022.  There was a period of learning, where the service was reviewed. In 2023, a decision was made to remove the person in charge from the Director of Nursing. 

The Employer’s understanding was that all who applied for the panel, received the same job specification. They accepted that it was possible that the previous Director of Nursing had provided a different job specification to the worker. They also accepted that there were three versions. They refer to a specific section common to all versions which referred to the legal definition of a person in charge. The representative stated “person in charge” was referred to in the job specification they were relying on nine times. This is at point 2 under principal duties, and at page 6 at point 5. It was accepted the majority of these references were under the definition of person in charge.

The legal definition of a person in charge is included in all versions of the job specification. It was submitted on behalf of the Employer that it would be highly unusual to include this if it was not relevant to the role. There is no rationale for including it if the person was not the person in charge.

It was accepted that the job specifications do not state when they were finalised or when they were updated. Human Resources signed off on them. These are tailored to the needs nationally of the recruitment service. There were five panel members. It was accepted that in 2021, it was possible that the person in charge was not included, but that the job specification was updated subsequently.

The Employer’s representative pointed out that this was the only Assistant Director of Nursing role where they were not the person in charge in the locality currently.

In relation to the interviews, there was an independent Chair, and everyone was provided with similar questions. The person who emailed the Worker is now retired. The Employer’s representative contacted the Chair who went through their notes in respect of the interview and found that there was no differential made between the roles. There would normally be a person in charge question by the professional on the board. There was no copy of the list of questions, those had not been provided. The eligibility is prepared on a national level. 

In relation to the payment issue, there is a SAP system for payroll. As the Worker has not signed her new contract her pay had to revert to that of her earlier role.

The Employer’s representative accepted that the person in charge responsibilities had arisen due to the change in the Director’s role. In June 2023, a contract was provided. There needed to be equality of the panels across the country. There are statutory obligations of the person in charge. They accepted that there was one person in charge per facility, and previously, this role had travelled with the Director of Nursing role. The Employer was not aware of other IR claims in relation to this but felt that other workers were aware of this case.

The current Director is aware that they are losing the person in charge role. 

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

Section 13 (2) and (3) of the Industrial Relations Act 1969 sets out the role of adjudicators in such disputes as follows

“(2) Subject to the provisions of this section, where a trade dispute (other than a dispute connected with rates of pay of, hours or times of work of, or annual holidays of, a body of workers) exists or is apprehended and involves workers within the meaning of Part VI of the Principal Act, a party to the dispute may refer it to a rights commissioner.

(3) (a) Subject to the provisions of this section, a rights commissioner shall investigate any trade dispute referred to him under subsection (2) of this section and shall, unless before doing so the dispute is settled—

(i) make a recommendation to the parties to the dispute setting forth his opinion on the merits of the dispute, and

(ii) notify the Court of the recommendation.”

As the parties can see, the only outcome open in the absence of a settled dispute, is to make a recommendation on the merit of the dispute.

As it was accepted by the Employer that the role did not include being the “Person in Charge” until 2023 I recommend that the Worker’s contract be amended to remove those duties. To include same after the applications have been submitted, after the interviews have occurred and after the panel has been established would not be transparent.

As the Worker has been acting in the role of Assistant Director of Nursing she should be remunerated at that rate. I recommend she be paid the difference between the rate she was paid and the rate for Assistant Director of Nursing from the 9th of November 2023 until her salary as Assistant Director of Nursing commences.

Industrial Relations; Promotion; Job specification